Public interest can’t be an additional ground to restrict free speech

In a recent decision, a division bench in the Bombay High Court (HC) exercised a power that vests solely with Parliament; it, in effect, amended the Constitution. Specifically, the judges introduced an additional restriction to the fundamental right to free speech and expression under Article 19(1)(a).

The matter involved nine petitions that challenged Telecom Regulatory Authority of India (TRAI) regulations in broadcasting (full disclosure — I work with broadcasters). The thrust of the petitioners’ argument was that TRAI’S economic regulations restrict the circulation of broadcaster programming, violating the broadcaster’s right to disseminate and consumer’s right to receive information, both of which are core components of the right to free speech.

The Bombay HC, however, held that “public interest” serves as an additional ground on which the

State may issue diktats to restrict free speech. This is problematic on three counts.

First, the HC overstepped its jurisdiction and stepped onto turf reserved for democratically elected legislators. A primary duty of the judiciary is to interpret laws, not create them.

Second, by reading in a vague notion such as public interest as a valid restriction on free speech in broadcasting, the court paved the way for greater State interference in television content, particularly news. As such, it failed to uphold the rights of citizens and operate as a check against abuses of State power.

Public interest is a fluid construct in Indian legal parlance, it is not defined, and it finds mention across a host of statutes, often justifying the more non-transparent elements of governance. For instance, Section 8 of the Right to Information Act uses public interest as a ground for the State to withhold information. Article 22 of the Constitution allows authorities issuing orders regarding preventive detention to maintain confidentiality about any facts related to such orders that it considers to be against the public interest.

The absence of a definition of public interest in legislation means that it falls to the judiciary to imbue it with meaning. However, courts tend to test public interest on a caseby-case basis.

In Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal, related to Right to Information requests made to courts on the collegium process, judges’ asset declarations, and judicial elevations, the court held that information officers must determine what constitutes public interest.

In addition, it re-emphasised and cherrypicked wide statutory grounds for the State to withhold information from the public, including breach of confidentiality and fiduciary responsibilities. What follows is that the concept of public interest is often employed to protect the interests of powerful individuals and institutions.

Third, the Bombay HC did not adhere to the judicial precedent on the matter of reading public interest as an implicit restriction on free speech. The Supreme Court (SC) has remained mindful of the political dimensions of public interest and what might result if it allowed the State to restrict free speech on this ground. While the right to free speech in India is not absolute and comes with certain riders expressly listed under Article 19(2) of the Constitution, public interest never operated as a legitimate restriction on it. Article 19(2) does not mention it and the courts do not permit its entry as an implicit restriction on Article 19(1)(a).

In Indian Express Newspapers vs Union of India, for instance, the SC observed that the framers of the Constitution deliberately omitted public interest from 19(2) to ensure that the State did not hold the right to free speech ransom when it wished to impose excessive burdens on the press.

Rather than make a rational decision guided by constitutional principles, in this case, the Bombay HC, with due respect, usurped the jurisdiction of the legislature, failed to uphold press freedom on television, and disregarded the precedent set down by higher courts. The order merits wider discussion and a review.